Aadhaar SC hearing: Constitution may protect one’s data but not one’s privacy, argues State of Maharashtra

The State of Maharashtra put forward the preposterous argument that while the Constitution may protect one’s data, it doesn’t protect one’s privacy or right to make choices

Additional Solicitor General Tushar Mehta, counsel for the UIDAI, cited the constitutions of Qatar, Singapore, China and the Kingdom of Saudi Arabia as countries where there was no right to privacy in the constitution

Senior advocate Rakesh Dwivedi, appearing for the State of Gujarat, conceded that choice and autonomy were protected, while arguing that information was not

At one point, while following the tweets on Day 5 (August 1) of the ongoing hearings the right to privacy in the Supreme Court (SC), I had a vision of a parallel universe, slightly different from ours. One where instead of a constitution which enshrines fundamental rights and envisages a liberal democracy, we Indians are subjects of an autocratic tyranny and our sheer existence is a gift of the ruling class. At least that’s what the counsels for the State of Maharashtra and the Unique Identification Authority of India (UIDAI) seem to want India to be.

Does the State of Maharashtra, as represented by senior advocate C Aryama Sundaram, seriously believe, in 2017, that the right to property under Article 300-A is actually wider than the right to life under Article 21? A right to “life” which apparently doesn’t even guarantee the right to bodily or mental integrity? At least, that is what seemed to follow from the somewhat preposterous argument that while the Constitution may protect one’s data, it doesn’t protect one’s privacy or right to make choices.

Does the State of Maharashtra, as represented by senior advocate C Aryama Sundaram, seriously believe, in 2017, that the right to property under Article 300-A is actually wider than the right to life under Article 21?

Equally baffling was the choice of Additional Solicitor General Tushar Mehta, counsel for the UIDAI, in citing the constitutions of those beacons of liberal democracy — Qatar, Singapore, China and the Kingdom of Saudi Arabia — as countries where there was no right to privacy in the constitution. For a brief moment, I got the impression that he was reading the submission of the petitioners by mistake, but it was I who was mistaken.

This was not the only baffling part of the day’s argument. While arguing that privacy was only a common law right and not a fundamental right, Mehta tied himself up in knots. Upon pointed questioning from Justice Sharad Arvind Bobde on what would happen if a law made by Parliament infringed privacy, Mehta conceded that such a law could be challenged as violating Article 14 of the Constitution. This, as Bobde pointed out, seemed to suggest that privacy was indeed protected under the Constitution, and was in contradiction to his earlier stand. Mehta’s response suggested that even the common law right to privacy could be used to challenge such legislation — which is actually the stand of the petitioners.

Though the central government and the UIDAI have attempted to argue the substance of the Aadhar case before the Constitution bench, the judges seem to be less than inclined to seriously consider this

Though the central government and the UIDAI have attempted to argue the substance of the Aadhar case before the Constitution bench, the judges seem to be less than inclined to seriously consider this. They seem to want to lay down the principles in this case and to allow the smaller benches to go deep into the merits of the Aadhar law and scheme.

Towards the end of the day, senior advocate Rakesh Dwivedi, appearing for the State of Gujarat, sought to make a new and interesting argument on the scope of the right to privacy. While conceding that choice and autonomy were protected, he argued that information was not. While Justices Jasti Chelameswar and Rohinton Fali Nariman seemed skeptical that privacy could be sliced and diced as such, he found a more sympathetic audience in Justice Y Chandrachud, who agreed that privacy perhaps couldn’t be defined without reference to the socio-cultural context.

Dwivedi will continue today (August 2) and it is quite likely that it will also be the final day of arguments in court. After the rejoinder by petitioners it is likely that judgement will be reserved and delivered sometime in the next couple of weeks.

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